DONOR NETWORK WEST and BERKSHIRE HATHAWAY HOMESTATE INS., adjusted by BHHC Aaron Galendez STATE OF CALIFORNIADivision of Workers’ CompensationWorkers’ Compensation Appeals BoardAARON GALENDEZ, Applicantvs.DONOR NETWORK WEST and BERKSHIREHATHAWAY HOMESTATE INS., adjusted byBHHC, DefendantsCase No. ADJ12293277REPORT AND RECOMMENDATION ON PETITION FOR REMOVALINTRODUCTION By a timely and verified Petition for Removal (Petition), defendant seeks removal to the Appeals Board, following my December 3, 2020 Order Denying Petition for Additional Panel (Order), issued in response to defendant’s October 29, 2020 Petition for Psychiatric Panel of Medical Evaluators, made pursuant to defendant’s interpretation of Labor Code section 3209.3. The Order made reference to the competing case law on this issue, Cachu v. Stockton USD (2016) 2016 Cal.Wrk.Comp. P.D. LEXIS 177 (Appeals Board Panel Decision); and Fliehmann v, Contra Costa County (2017) 2017 Cal.Wrk.Comp. P.D. LEXIS 109 (Appeals Board Panel Decision). Defendant contends that my order issued in error, and that I should have issued an order for an additional QME Panel in psychiatry, pursuant to Labor Code section 3209.3(c). Applicant filed an Answer, disputing defendant’s contentions. After my review of the Petition and applicant’s Answer, I recommend that removal be denied. , BACKGROUND Applicant was evaluated by Dr. Dr. J. Kyle Van Gaasbeek, the QME in psychology, and Dr. Gaasbeek produced a report of August 21, 2020, in which he found that applicant sustained a psychiatric injury arising out of and in the course of employment, as a compensable consequence of his orthopedic injury. Dr. Gaasbeek also found that applicant’s psychiatric condition was not yet permanent and stationary, that his GAF score was presently 56, and that 90% of the permanent disability was the result of this June 9, 2018 injury. On October 29, 2020, defendant submitted a Petition for Psychiatric Panel of Me
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